| People v Carrasquillo |
| 2008 NY Slip Op 03818 [50 AD3d 1547] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AngelCarrasquillo, Appellant. |
—[*1] Angel Carrasquillo, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Jessica Birkahn Housel of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered June 23, 2004. The judgment convicted defendant, upon a jury verdict, of murder in thefirst degree, murder in the second degree (two counts), robbery in the first degree (two counts)and attempted murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of, inter alia,murder in the first degree (Penal Law § 125.27 [1] [a] [vii]; [b]), defendant contends thatSupreme Court erred in refusing to suppress his statements to an informant and a policeinvestigator. We reject that contention. With respect to the informant, at the time defendantspoke to him in jail defendant was serving a sentence for a prior conviction on an unrelatedcharge, had no pending charges against him, and was not represented by counsel. The recordestablishes that defendant's conversation with the informant was voluntary, and the fact that theconversation took place in jail did not render it custodial in nature (cf. People v Burdo,91 NY2d 146, 150 n [1997]). With respect to the police investigator, even assuming, arguendo,that the court erred in refusing to suppress defendant's statement to him, we conclude that anyerror is harmless (see generally People v Crimmins, 36 NY2d 230, 237 [1975]). ThePeople did not offer the statement in evidence at trial, and the prosecutor questioned the policeinvestigator only with respect to defendant's date of birth, which constitutes pedigree informationthat is "not suppressible even when obtained in violation of Miranda" (People vRodney, 85 NY2d 289, 293 [1995]).
Contrary to defendant's contention, the court properly determined that the photo arraywas not unduly suggestive inasmuch as defendant's photograph does not "stand[ ] out asmarkedly different from" the other photographs (People v Gee, 99 NY2d 158, 163[2002], rearg denied 99 NY2d 652 [2003]). Finally, we reject the contention of defendantthat he was denied effective assistance of counsel (see generally People v Benevento, 91NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).Present—Martoche, J.P., Centra, Lunn, Peradotto and Green, JJ.